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Responses by the Ecclesfield Conservation and Local History Group to certain questions in the Environment Agency Consultation on …

Assessing and Scoring Permit Compliance

7. The proposed amendments include changes to the principle of consolidation around Emission Limit Values (ELVs). Do you agree with the proposals to consolidate scores for ELVs?
(Please select your answer)

Strongly disagree

Please provide further information to support your answer in the space below.

We think that it would be unwise for the Environment Agency to consolidate ELV scores, or do anything which could reduce penalties while unconventional oil and gas extraction remains such a controversial issue, or while the role of EU institutions in monitoring and enforcing environmental law is being re-negociated or terminated.

REDUCED PUBLIC TRUST AND CONFIDENCE IN REGULATION

As mentioned in the Environment Agency’s Annual report and accounts 2016 to 2017 [Section 6.2], there is a need for the Agency to “manage the high public interest” and “correspond with protest groups”. Since this report was written, public interest has been raised further by the three anti-fracking protesters who received long prison sentences – but were then released by the Court of Appeal. It has also been raised by the start of fracking near Blackpool, and its well-reported stopping because of legal challenges and underground earth quakes. Any real or even apparent relaxation of controls while these issues are being thrashed out, and while the fracking firms are developing their environmental and other procedures is likely to change the balance and reduce the amount of money the firms believe they need to spend on environmental protection. Less money, means more infringements and more problems for the Agency. Any such problems would then multiply, since as the Agency’s report says, “many more permit applications for oil and gas exploration” are expected, and the “Independent Newspaper” says there is a need for 1,000 well pads covering a total site area of 3.5 hectares. Each site which the Environment Agency permits, increases the likelihood of one or more of them exceeding their emissions limits. The Environment Agency could get into problems if it changes to a system which could produce only derisory, or suspended penalties for any infringing sites. There would be a fear that the Environment Agency, is no longer independent, but has been captured by industry. Even if this is not true, the mere impression, could put fracking and other firms in a race to cut corners, risk penalties, and pollute the environment. The public might then rightly conclude that the system was broken and in need of repair.

REDUCED CLARITY LEADING TO GREATER INFRINGEMENT

To firms handling unwanted pollutants, the cost saving by simply disposing of the pollutants to the environment is usually very clear. Unless the penalties are equally clear, we would expect some firms to opt to save the costs. The proposal to consolidate scores in some (but not all) circumstances, and if consolidating, to choose the highest, (but not one of the lower) score, is more complex than simply adding the scores, and therefore makes it harder for firms to understand and calculate the possible penalty costs. We would therefore expect that under this proposal, the number of firms opting not to for instance, maintain that leaking pipe, or change that clogged filter, would increase.

REDUCED PENALTIES LEADING TO GREATER INFRINGEMENT

Among firms that know of and understand the change, the reduction in penalties resulting from consolidation, would put management of for-profit firms in a difficult position. People could argue that if the reduced penalty is less than the cost of the measures needed to avoid correct a problem or exceed a limit, then some may argue that the fact that management’s first legal duty is to their shareholders means that they ought to save the cost and cut the corner. Fortunately, in the case of a single discharge exceeding the limits for more than one pollutant, it is reasonable to think that the firm is likely to have been paid for each of those pollutants, and that in perhaps most cases, in order to create a sufficient incentive, the scores for each infringement must be added together.

This is perhaps especially true for new industries such as fracking which need to use increasing quantities of toxic materials. These and perhaps other firms may want also want to take advantage of any reduction in the scope of EU regulation following brexit, by increasing the range and toxicity of the materials they are allowed to use. However, this would mean that the cost of proper disposal of these materials would also be increasing. This rising disposal cost would increase the incentive to dispose of the waste improperly, and it is therefore important to maintain and possibly increase penalties, rather than reduce them.

UNFAIRNESS OF CONSOLIDATION IN COMPARISON WITH MOTORING OFFENCES

The analogy to the proposed consolidation of environmental penalties which most readily springs to mind is the totting-up procedure for motoring offences. Although judges have discretion, the system as we understand it is for the penalties for multiple, but minor individual motoring offences to be “totted-up”. The fact that the offences were committed on the same road [I.e. site], and with the same car [plant] does not mean that the penalties for a speeding, a traffic light and a bus lane offence would not be consolidated. Instead, they are normally added up. This toting-up procedure is so well known that people are unlikely to understand why the Environment Agency has conceded anything else to the industry it regulates, and consider it unfair, being biased in favour of the infringing companies, and against the community at large.

EFFECT OF THE CESSATION OF EU INVOLVEMENT IN UK ENVIRONMENTAL PROTECTION

Our concern is increased by the likely removal of the role of EU institutions in monitoring and enforcing environmental law, including the Registration, Evaluation, Authorisation & restriction of CHemicals regulation (REACH) on 29^th March (Brexit Day).

If the Environment Agency reduce penalties at the same time, it could easily give the impression that the UK intended to compete with our previous partners by reducing the cost of both the fines for infringements, and the investment needed to avoid those infringements.

8. The proposed amendments include changes to the principle of suspension. Do you agree that by offering the potential for suspended scores to continue beyond six months, that we are giving operators greater opportunity to address complex non-compliances? (Please select your answer)

Strongly disagree

Please provide further information to support your answer in the space below.

Again, we think that the Environment Agency would be creating problems for itself if it reduced penalties at a time when the fracking industry was deciding on the internal controls and amount of money it is prepared to spend on environmental protection.

REMOVAL OF THE GUARANTEE TO LOCAL COMMUNITIES

The limitation of the existing suspension of penalties to a maximum of six months gives communities a sort of guarantee in that six months from starting to infringe emissions, the company will have to at least start paying for the privileged. If there is even a theoretical possibility of this being re-suspended then there is no guarantee, either of payments or therefore of the problem being corrected. Even emissions slightly or occasionally over the limits set by the Environment Agency, would become a much larger issue, with the community coming to believe that the only way of resolving the situation was for it to organise and take action itself.

REDUCED CLARITY LEADING TO GREATER INFRINGEMENT

Again, to firms handling unwanted pollutants, the cost saving by simply disposing of the pollutants to the environment is usually very clear. The proposal to review, rather then to automatically end suspension of scores is more complex and less certain than automatically terminating it, and therefore makes it harder for firms to understand and calculate the possible penalty costs. We would therefore expect that under this proposal also, the number of firms opting not to for instance, renew plant which could not conform to current standards, or was worn-out and failing, would increase.

REDUCED PENALTIES LEADING TO GREATER INFRINGEMENT

Among firms that know of and understand the change, the reduction in average or expected penalties resulting from increased chance of renewed suspension, would again put management of for-profit firms in a difficult position. Instead, we would argue that it is reasonable to think that any offending firm has saved costs, and that in perhaps most cases, in order to create a sufficient incentive not to do this, scores should not normally be suspended, but imposed.

This is perhaps especially true for new industries such as fracking which need to use increasing quantities of toxic materials, or of these or other firms who take advantage of any reduction in the scope of EU regulation following brexit, by increasing the range and toxicity of the materials they are allowed to use.

INCREASED PRESSURE ON THE AGENCY AND ITS INSPECTORS

As reported in the DEFRA press release of 29 March 2018, there has already been “a growing number of abusive incidents during site inspections.” There has also been an HSE case study reporting one inspector being threatened by a gun, and another by a knife. If people know that the Environment Agency can suspend scores indefinitely, then this will increase the resentment of anybody who does not get their scores suspended, and pressure on inspectors and the Environment Agency will increase.

COMPARISON WITH OTHER AREAS OF REGULATION

An obvious model for suspending scores is the court’s use of suspended sentences. If a court is told at the end of a criminal’s six month suspended sentence that he is still offending, then the Courts don’t normally extend the suspension. They generally impose both the original sentence and then consider adding to it. To scoring system is already far more lenient than this and to further loosen it risks exposing the system to derision.

CESSATION OF EU INVOLVEMENT

Again, our concern about this part of the proposal is increased by the likely removal of the role of EU institutions.

12. We really value your feedback on our proposals. Please tell us if you have any further comments and provide as much information as possible to support your answer.

We understand that Ecclesfield contains one of currently only four sites in England permitted to processes the waste-water from fracking. Concern has been raised in the village by at least two articles about this in the local press, and the fear that toxic materials will be tankered to the built-up part of the village for processing.

Thank you for responding to this consultation.

We will make your response publicly available (excluding personal information and financial data) at the end of the consultation, unless you have requested that we do not publish your response.

Following the end of the consultation we will also produce a consultation response document and this will be published on this consultation’s web page by December 2018. We will email you to inform you of when we have published this document if you have requested that we do so.

Over the next few months we will be using the responses to this consultation to revise the guidance ready to publish the updated version on or before the 1st January 2019, which is the start of the new compliance year.

Thank you

The Compliance Team